Law and History

Differentiation between these two understandings of law assumes a deci-sive importance when we examine the relationship between law and social change, or law and history. The law, interpreted merely as a formal instru-ment and in its form as an instruinstru-ment, creates completely different rela-tionships than the law, interpreted as a regime of orderly interactions in its practical functioning and social effect, which is regarded as an integral component of the life and culture of society.

2.1. Law as Instrument

In the development of the law as a mere instrument, the formally defined specificity of the legal sphere plays a near dominant role. Socio-historical factors have little if any direct influence on the shaping of this mere i n s t r u m e n t . In other words, even motives that are purely incidental from the point of view of the historical process and concrete social chal-lenge may have a decisive influence on how and through exactly what the

instrument of the law will react, that is, what will be transformed into what, and into what it will develop when it responds. In philosophical terms, the growing tendency of socialisation (Sozialisierungin LUKÁCS’ terminology) in social development explains this illusory autonomy. S o c i a l i s a t i o n means m e d i a t e d n e s s gaining ground in social relations, and i n -d i r e c t n e s s , increasingly characterising interactions. It also means that directness and uni-directionality wane and gradually disappear even from apparently simple teleological processes. There remains nothing but interim mediations. Moreover, the process itself becomes increasingly multi-directional with several opportunities to develop toward various end points and, at the same time, it becomes socially conditioned, distilled to an increasing extent. That is, the other social complexes participating in this composite movement also display their relative autonomy and speci-ficity in an increasingly pure and definite manner. Accepting this involves nothing but sober realism, as against the inspiring belief in universal evo-lution: i n s t r u m e n t a l c o n t i n u i t y is recognised thereby as the main component in the development of law as an instrument. It means that new answers to increasingly new challenges are usually not generated through the development of new instruments but rather—for purposes of intellectual economy, and also due to the forces of habit, inertia and imi-tation—through re-interpretation, re-combination or transplantation of the already available ones. All this naturally involves a host of sources of errors, as well as the possibility that conditions completely alien to the nature of the issue will gain a decisive influence. In this way, for example, the question of what old or foreign legal solutions were available or known in the given place and at the given time may assume a decisive importance.

To give an example: let us consider how the regulation of responsibility for an ox goring a man to death was transmitted in the cultures of Meso-potamia for centuries—from the Laws of ESHNUNNAthrough the Code of HAMMURABI to the book of Exodus in the Old Testament. Not only the identical substantive and procedural solutions characteristic of the region were inherited, but also the historically incidental extra regulation linking responsibility to one precondition, namely, that the owner had to be noti-fied of the ox’s inclination to gore, officially and in advance. Or, let us con-sider how the Scots law, having developed in the shadow of English law, took the decisive steps on the road to modernity in just a few decades towards the middle of the 17^thcentury, while its conceptual system cover-ing the fields of private law began to depart from the contemporary English tradition in order to achieve a final organisation according to the

classical model inherited from JUSTINIAN. The explanation for the rapid change lies in the availability of certain treatises of law, which in the late 16^thto mid-17^thcenturies relied on English sources and traditions in their practical material but turned for assistance in their exposition and syste-matisation to concepts and conceptual distinctions known from the Code of JUSTINIAN.

Therefore, our conclusion can only be that law taken as a mere in-strument has a relatively free scope of movement in history. Our starting point here can only be that there is n o e q u i v a l e n c e b e t w e e n m e a n s a n d e n d s . Different means can serve the same social end with equal or, at least, similar efficiency, depending on the established tra-ditions, habits and stimulations. At the same time, the instruments at the law’s disposal constitute only one component—flexibly defining the gene-ral framework for action—of the influence exerted. This is so because, by itself as a norm-text, the law is merely an abstract entity, which can only be actualised through the concrete practices of interpretation and social or juridical application. Consequently, it is futile to attempt to reconstruct human history by starting out from the law as a closed set of formalised texts, or to draw clear-cut conclusions regarding the law from the deve-lopment of history. Naturally, parallelism undoubtedly exists. For example,

“legal archaeology” is just as (though, in contrast to certain excessive opi-nions, I believe, not more) relevant regarding the exploration of the whys and the wherefores of the historical processes of the past as the archaeo-logy of working tools, practices of settlement or ritual habits and beliefs.

To use concrete examples: It can hardly be ascertained on the basis of economic or political conditions alone what was the determining factor in Western legal development that caused its splitting into patterns that diverged later on as the Civil Law and Common Law—despite the com-mon Roman traditions. Equally, it is impossible to deduce from social development and its challenges alone why and how free contractual forms became institutionalised in one system, whereas in another system the legal construction of the trust—still unrivalled in its extreme malleability—

became established. On the other hand, however, if legal regulation is taken as a starting point, a researcher influenced by our present culture may, sometime in the distant future, hardly be able to gather the harsh reality of history through reviewing, for instance, the Soviet Constitution adopted in 1936. This is so because it served as the normative basic char-ter for building Soviet society from the STALINist period, through the post-STALINist transitional years and the attempts at renewal by the 20^thand 22^nd

Congresses of the Soviet Communist Party under KHRUSHCHEV, up to the new Constitution adopted in 1977 in the BREZHNEV era. Or, how could any future researcher imagine the hardships of Hungarian history under the Soviet occupation, based on the early open and definite constitutional declaration of the right of public assembly? After all, the Soviet-patterned Constitution of the year 1949 (and especially at present) seems to be se-vered through circumstantial regulation although we alone, the witnesses of this history in the late 1980s, can know that all this simply reflects the replacement of mere verbalism with detailed regulation in the interests of living practice.

The dilemma remains basically the same if the law as an instrument is not interpreted as a concrete solution, but as a form of normative definition of such a solution in a norm-text. Well, whether it be customary law, judi-cial law-making, legislation (codification) or the forms of arrangement of legislation (revision and consolidation), in most cases, it is possible to pin-point a clearly definable series of historical events that give the procedure or form concerned its typical characteristics, thereby also providing its ideal type. In this way, at the first approach European customary law can be cor-related with the Middle Ages, precedent-law with the English legal deve-lopment, the ‘code’ with the work of JUSTINIAN and codification with the civil law issue of the French Revolution. However, taking a closer look at these, it is immediately obvious that this is but the absolutising projection of certain achievements of European civilisation as universal. This is inad-missible, because it would mean the reduction of individual products of cultural development to their local conceptualisations in the form of so-called “folk-concepts”, characteristic of typified carriers of culture—in other words, extending what is historically particular to being universal.

In any event, whichever variation of a procedure or form in law manifest-ed in the history of the development of civilisation is explormanifest-ed, it imme-diately becomes clear that, under differing conditions, any of them could successfully fulfil any social function that the law has ever been able to serve.

Therefore, the functional typology of codification is identical with the typology of the law itself. Equally, it can be said that precedent-law, as it appears in the British, American, South African, Israeli or so-called mixed legal systems, could successfully serve both socio-legal preservation and change everywhere. In a similar way, customary law, which developed in Europe during the Middle Ages, had a different role in Hungary during the 16^th and 17^thcenturies, divided into several parts by Turkish and Austrian

conquerors, where its non-official consolidation by WERBÖCZY’s Tripar-titumserved as an effective means of preserving national, and within that, legal unity. And obviously, even farther away is the role that so-called pri-mitive customary law could play in its own apparently formless regimes.

2.2. Law as Culture

However, the moment that the law is viewed in its social reality, i.e., in action and together with the preconditions and effects of its functioning, we come to a different conclusion. In this case, law is regarded as a part of general social culture, as something embedded in this (historically deter-mined and, at the same time, history-shaping) culture. It is exactly due to these cultural roots and the corresponding attitudes and mentality that it can sometimes display surprisingly strong continuity, and even at times resistance, in the face of the storms of history, which may compel the most drastic changes. Therefore, while the fate of the law as a mere instrument is the direct issue of actual might, it can turn into a powerfully autonomous and self-asserting entity as a component of history if it grows into a tradi-tion. For the law, conceived of as a part of general culture, is a complex phenomenon which shapes history from the outset. Naturally, it is clear from the point of view of any historical or socio-ontological reconstruction that this does not involve a uni-factorial definition but, in the first place, a f i l t e r i n g r o l e t h a t g i v e s a f o r m , and through this filter, also selects, shapes and turns it into specificity. It means that the legal com-plex (in a way similar to any social comcom-plex that has developed its relative autonomy and peculiarity) reacts to the challenges of its environment in its own way. It reacts to the most heterogeneous inputs with its homogenising outputs, which themselves are quite external and alien to the inputs arriv-ing from the environment. In this way, it will eventually shape the practi-cal realisation and effect of the outside changes, as its relative autonomy and developed specificity enable it to integrate these changes into its own system, by adjusting them to its own structure and structured reaction.

And such a well-developed (though relative) independence of action and reaction can, in extreme cases, determine the nature and even the outcome of the events.

Let us consider how the CONFUCIan tradition—invariably, but with extreme adaptability—has for thousands of years shaped the concept and the entire fate of the legal phenomenon in China and Japan. This is so because the Western pattern of social regulation, embodied in the guaran-tee of individual rights and codified in all its details in advance,

ready-made for application, often continues to fight for its recognition only from the periphery of judicial practice, although the modernisation programmes of socio-economic transformation aimed at promoting the Western pattern and mentality have for almost a century set as their objective the replace-ment of this traditional legal ideal. Or, let us consider the lasting effect of the mixing of the Byzantine and Mongolian heritages on the development of the genuinely Eastern (orthodox) region of Europe (from Russia and Bulgaria to Romania and Serbia) primarily with respect to the exclusivity, unity and charismatically rooted legitimacy of power, the identification of a variety of state activity with law and the lack of legal constructs (like the hypostatisation of a ‘social contract’) designed to differentiate between society and the state—at least ideologically. Or, let us consider how the ancient fundamental freedoms—one after the other subdued and made dependent on royal might and grant by the European absolutisms—re-mained intact in the British legal development, and became the basis of the legal culture firmly fenced round with legal guarantees that is a striking characteristic of the Anglo–American legal mentality. This legal culture is one that has so far successfully avoided the threatening perspective of hav-ing its values degraded into mere instrumentality and behav-ing forced to expe-rience the self-destructive defencelessness of legal positivism in the face of power, and the destruction caused by legal machinery directly controllable through political impulse.